1985 PLP 2256 (CLC)

This revision petition has called in question the order, dated 24-3-1981 of the Civil Judge, Minchinabad and that of the District Judge, Bahawalnagar pronounced on 15-10-1981 whereby the petitioners were denied the prayer for temporary injunction for the protection of their possession over the disputed property.

2. The facts giving rise to the instant petition in substance are that Ashiq Muhammad was the owner of 436 Kanals of land situated in village Khaira Muhammad All Tehsil Minchinabad District Bahawalnagar. He donated this property in favour of Noor Muhammad, his brother, Noor Nishan his sister and Mst. Noor Begum his daughter to the extent of under 192 Kanals, 192 Kanals and 52 Kanals respectively. It is alleged that the possession of this land was delivered to the donees and a registered gift deed, dated 11-12-1975 is in existence in favour of the donees. The disputed land had been mortgaged with the Agricultural Development Bank against a loan of Rs.21,

990. Mutation No. 47 in respect of this gift was attested on 22-4-1976 and on a review petition it was cancelled by the Collector, District Bahawalnagar on 13-10-1978 as the disputed land was found encumbered.

3. Subsequently Ashiq Muhammad is stated to have executed another document, dated 4-7-1979 which has been labelled as a will and one-third of the property held by Ashiq Muhammad was be quested in favour of Noor Muhammad and he was also made entitled to share the rest of the property according to his normal share.

4. On the basis of the said registered gift-deed, the present petitioners filed a declaratory suit. They moved a petition for the grant of a temporary injunction restraining the respondents from interfering with the possession of the disputed land which was denied to them by both the lower Courts below.

5. With reference to para. 5 of the mortgage deed, it has been contended on behalf of the respondent that Noor Muhammad had violated his contractual limitation as he could not transfer this property in accordance with the said agreement. It may be noted that section 19 of Agricultural Development Bank Ordinance (IV of 1961) does not bar the transfer of the property during the subsistence of mortgage. In Chief Land Commissioner and another v. Maula Dad and others 1983 SCMR 264, it has been observed that the scheme underlying in law relating to mortgage with Agricultural Development Bank does not vitiate the subsequent transfer during the subsistence of mortgage because the transferee of encumbered land is to step into the shoes of the debtor. This argument, therefore, does not find favour.

6. Noor Muhammad has asserted that he got the possession of the landed property gifted to him is still in possession of the same. It may be noted that in the Khasra Girdawari and the Jamabandi for the year 977-78 Ashiq Muhammad has been shown to be in possession of the lend in dispute till his death. Again it may be noted that Noor Muhammad got entered Mutation No.55 regarding the will and he also got recorded report No. 195 in the Daily Diary of the Patwari regarding the said will which means that he had accepted the cancellation order of mutation, dated 13-10-1978. The matter does not end here. Noor Muhammad again got registered a sale-deed, dated 11-4-1979 regarding 36 Kanals of land owned by Ashiq Muhammad and got attested Mutation No. 53 on 19-8-1979. This land is stated to be a part of the land embodied in the gift-deed. According to the records Noor Muhammad was instrumental in getting entered Mutation No. 56 in respect of the inheritance of Ashiq Hussain which had been sanctioned.

7. The gift-deed is indicative of the fact that certain wrong facts' have been recited in this document. It has been recorded therein that 1 the land in dispute is free from any encumbrance and the gift was being made to make the legal heirs its owners. It may again be repeated that the gift was made in favour of the brother, the sister, and one daughter of Ashiq Muhammad whereas he was survived by a widow, two daughters, a brother and a sister. Their legal shares according to Muslim Personal Law are as follows: Widow???????????????????????????????????????????????????????????? ....1/8 Two daughters????????????????????????????????????????????????? ....??????? 2/3 Noor Muhammad???????????????????????????????????????????? .... 10/72 (petitioner No.1) Mst. Noor Nishan??????????????????????????????????????????? ....??????? 5/72 (sister). It means that the gift-deed embodied misrepresentation of facts and Noor Muhammad in this manner has approached the Court with tainted hands and is not entitled to any equitable relief. In Burewala Textile Mills Ltd., Burewala v. Zeenat Textile Mills Ltd . , Faisalabad P L D 1978 Lah.

305. It was held that temporary injunction should not be granted if the ;petitioner had misrepresented facts as he was not entitled to any disc?-etionary relief. These are the observations of Mr. Muhammad Mehmood Bhatti who was a Judge of the Lahore High Court, Lahore at that time and is now representing the petitioners in the instant revision petition. 8.???????? The following are the ingredients of the gift:????????? (i) offer of the gift, (ii) acceptance, and (iii) delivery of possession. All these ingredients must co-exist. In this case the record prima facie shows the possession of the donor on the land in dispute till his death. No prima facie or an arguable case has been made out by the petitioners.

9. The balance of convenience which is alleged to be in favour of the petitioners would be the balance of inconvenience to the respondents in whose favour a mutation of inheritance has been sanctioned. In case a temporary injunction is granted in favour of the petitioners, the respondents who are ladies, shall be deprived of their right to receive rents. The petitioners will not suffer any irreparable injury if the respondents get their due share as the legal heirs of Ashiq Muhammad in accordance with mutation of inheritance.

10. The learned lower Courts below have declined to grant any discretionary relief to the petitioners. They have not committed any illegality or material irregularity in the exercise of their jurisdiction. I see no merit in this revision petition and dismiss the same with costs. M Y . H .???????????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.